Declaration of posting
Under Aufsandungserklärung understands Austrian Land Registry Law ( § 32 para. 1 lit. b GBG) a notarized or court- certified "express" declaration of a person that they are in the land register consent of their rights registration of a contractual change.
In German law, the process is similar and an important part of the so-called Auflassung ; in the Central European successor states of Austria-Hungary it largely corresponds to the land register process in Austria.
The declaration must give the person whose books real right limited, charged , canceled or to another person transferred to be. Without such a declaration, no rights or obligations can be incorporated into the land register because the legal system provides for special securities for immovable property : Due to the principle of separation , a contract between the parties is not sufficient for implementation in the land register . Only the declaration of posting is the legal basis for the transfer of ownership .
The origin of the word is associated with the drying ( i.e. reinforcement ) of a document by means of scattered sand . A similarly affirming, ending point of expression has been preserved to this day in the word "End - point - sand !"
Sanding up and trusteeship when selling a property
The most important type of declaration of return (or the corresponding declaration of "abandonment" in land registers in Germany) relates to the sale of a property . With the "express declaration" the seller clears the legal path for the transfer of ownership to the buyer; In addition to the certified purchase contract, it is an unconditional prerequisite for incorporation in the land register, which makes ownership of a property fully effective.
The declaration of dispatch can already be included in the sales contract, which is becoming increasingly common. In special legal cases, due to the principle of abstraction, it can also come into force in the event of an invalid purchase contract (see web link).
In order to ensure full legal certainty , the declaration of posting is usually formulated by the notary himself, although it can also be drawn up by the landowner and presented for certification .
However, since it is advisable to use a trustee due to the financial transactions ( purchase price , possible cancellation of a mortgage , etc.) and other conditions (reservations in the land register, change of easements ) , it is also cheaper to provide the notary with the entire complex in terms of fees entrust.
Because ownership of a property cannot be directly and immediately carried out in the land register, there is the possibility of a reservation (in Germany so-called priority notice of conveyance ). It protects the buyer from someone else becoming the owner of the property in the meantime.
